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Staying the Course
If some in-house lawyers were breathing a sigh of relief early this year after the Federal Trade Commission essentially gave Google Inc. a pass following a lengthy antitrust investigation, their relief may have been blunted by an event just a few days earlier. In the waning days of 2012 December the Senate confirmed Arnold & Porter's William Baer as the new chief of the U.S. Department of Justice's antitrust division. on Sunday, to the delight of many in the antitrust bar who have widely lauded his qualifications for the job.
The choice was generally interpreted by the antitrust bar as an indication proof that the second Obama administration had no intention of wasn't going soft. Allan Van Fleet, a former chair of the American Bar Association's antitrust law section, says the opposite was true administration remains committed to competition. "The message to antitrust practitioners and companies wondering what this means to compliance: I don't see any letting up off the pedal by the administration," says Van Fleet, a partner in the Houston office of McDermott Will & Emery. "I see aggressive enforcement action continuing."
The 64-to-26 vote took only a few minutes, with no debate or statements on the Senate floor. All votes against Baer were from Republicans, who nevertheless gave him a warm welcome at a Judiciary Committee hearing in July. They later would say they did not like something discovered in Baer's background check.
It is harder to find a vote against Baer among top antitrust attorneys. He has a wide range of experience in both private practice and government enforcement, including four years as director of the Federal Trade Commission's Bureau of Competition during the 1990s. His longevity is illustrated in a confirmation packet that included 1,450 pages of news articles in which he was quoted from as far back as 1991, as well as 775 pages of remarks he has given to the FTC and other agencies , and 557 pages of testimony and other statements .
Baer is known for being a straight shooter, says Deborah Garza, cochair of Covington and Burling's antitrust and consumer law practice group. He's also smart and understands enforcement, and "he's not going to be going out to make a mark," adds Garza, a former acting assistant attorney general in charge of the antitrust division. "I don't think he's going to be looking for 'What's my big case, what am I going to make my name on?' "
Baer will face some challenges. Budget constraints will mean marshaling the division's resources to go after cartels and mergers that really matter to the economy, Van Fleet notes. The Justice Department may also look hard at competition issues in the health care industry as the Affordable Care Act is implemented.
Garza says that there will be interest in how Baer interprets a few of the most pressing issues, such as most favored nations clauses and the role of the U.S. Court of International Trade in enforcing standard essential patents.
Baer, who declined to comment for this article, did not immediately return a call for comment Wednesday. He told senators during his confirmation hearing in July that he had no preset agenda for the division, and added that his leadership would mean that not much would change. He told the Judiciary Committee, in response to questions from Senator Mike Lee (R-Utah), that he would focus on consumers.
"I would take this job, if confirmed, with a little bit of humility about what might need to be changed. I think the antitrust division has been well run in recent years," Baer testified. He said former Assistant Attorney General Christine Varney and two acting assistant attorneys general, Sharis Pozen and Joseph Wayland, "are people I admire and respect, and who I think have done a very good job."
Baer will join Justice on the heels of the antitrust division's successful effort to stop the $39 billion merger between AT&T Inc. and T-Mobile USA. A team from Arnold & Porter, including Richard Rosen and Donna Patterson, defended AT&T in the litigation in the U.S. District Court for the District of Columbia.
Attorney General Eric Holder Jr. spoke highly of him in a written statement. "Bill is a highly skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better-quality products and services," Holder said. "I have no doubt that he will lead the antitrust division effectively in its vigorous enforcement of the antitrust laws."
Nominated in February 2012 added , Baer had awaited final Senate approval since the Judiciary Committee approved him back in September. He finally got a vote on Sunday, December 30, during an extra weekend session, when legislators were focused on negotiations about tax and spending cuts to resolve the fiscal cliff. Had the Senate not voted, the White House would have had to renominate him. Baer is one of the most respected attorneys in the field, said Richard Parker, chair of the antitrust and competition practice at O'Melveny & Myers and a friend of Baer. "This is really good for antitrust, and really good for the United States," Parker said. "Bill is terrific."
A version of this story appeared in The National Law Journal, a sibling publication of Corporate Counsel.